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Abstract:
Proponents of specific performance as a remedy for breach of
contract have found support in the alleged use of the remedy in
Civil Law countries. However, we provide evidence that specific
performance is in fact a rare remedy in Denmark, Germany and
France, and under CISG, when performance requires actions to be
undertaken, and we relate this to costs of enforcement. We argue
that it is administratively costly to run a system of enforcement
that renders specific performance attractive to the aggrieved party,
and that the Civil Law countries have (like Common Law countries)
chosen not to incur these costs of enforcement. This is especially
clear in the case of Denmark, where specific performance of actions
has been abandoned as a legal remedy.
At the normative level, we argue that enforcement costs provides
an additional rationale, over and above the rationales of the theory
of efficient breach, for damages and against specific performance
as the general remedy.